NY Federal Court Suit on Laptop Searches

Earlier BLS Library Blog posts here and here addressed the issue of searching travelers’ laptop computers at airport security checkpoints. This week, the American Civil Liberties Union (whose President is BLS Professor of Law Susan N. Herman) issued a press release about its lawsuit against the Department of Homeland Security (DHS) over the issue which it filed this past Wednesday in the US District Court of the Southern District of New York. The suit seeks an Order directing the DHS to comply with the ACLU’s Freedom of Information Act (FOIA) request for access to documents related to the US Customs and Border Protection (CBP) policy regarding laptop searches. The ACLU alleges that the laptop search policy violates travelers’ Fourth Amendment protections against unreasonable searches and seizures because laptops are searched without “individualized suspicion” of wrongdoing.

The ACLU is seeking information related to the criteria for selecting who will be searched, how many searches have been conducted and what types of devices or documents CPB has retained. Last year when introducing the Travelers Privacy Protection Act in the 110th Congress, Sen. Russ Feingold (D-WI) criticized the CBP’s warrantless searches and seizures of travelers’ laptops and other digital devices at the US border, calling them an unacceptable invasion of privacy. That bill, which sought to require CPB agents to “have reasonable suspicion of illegal activity before searching the contents of laptops or other electronic devices carried by U.S. citizens and legal residents”, died in committee in the last Congress.

In the current 111th Congress, the Senate Judiciary Committee addressed the issue at a hearing in May. DHS Secretary Janet Napolitano testified that her agency, which oversees Customs, would be revising its policy to address privacy concerns. She told the committee that the relatively low number of laptop searches has uncovered significant criminal activity and that the practice would continue. This video clip shows Sen. Feingold questioning Secretary Napolitano on border searches of laptop computers and other electronic devices without any suspicion of wrongdoing.

This week, the DHS Privacy Office released a Privacy Impact Assessment in connection with new CPB directives to enhance public understanding of the authorities, policies, procedures and controls employed by DHS during border searches.